Citation Nr: 0809776
Decision Date: 03/24/08 Archive Date: 04/09/08
DOCKET NO. 00-06 746 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manchester,
New Hampshire
THE ISSUE
Entitlement to Dependency and Indemnity Compensation (DIC)
pursuant to the provisions of 38 U.S.C.A. § 1318(b).
(This issue is also addressed in a companion case under a
separate docket number.)
REPRESENTATION
Appellant represented by: V. A. Wenners, Jr., Attorney
WITNESSES AT HEARING ON APPEAL
Appellant and E.C.
ATTORNEY FOR THE BOARD
T. L. Douglas, Counsel
INTRODUCTION
The appellant is the daughter of the veteran who served on
active duty from December 1968 to July 1970, with service in
the Republic of Vietnam from July 1969 to July 1970. The
veteran died in November 1998.
This matter comes before the Board of Veterans' Appeals
(Board) by order of the United States Court of Appeals for
Veterans Claims (hereinafter "the Court"), which vacated a
July 2004 Board decision and remanded the case for additional
development. The issue initially arose from a January 1999
rating decision by the Manchester, New Hampshire, Regional
Office (RO) of the Department of Veterans Affairs (VA). The
case was remanded for additional development in July 2006.
FINDINGS OF FACT
1. All relevant evidence necessary for the equitable
disposition of the issue on appeal was obtained.
2. A total service-connected disability rating was not in
affect for 10 years at the time of the veteran's death and
there is no indication that he was hypothetically entitled to
a total rating for 10 years prior to his death.
CONCLUSION OF LAW
The criteria for DIC benefits pursuant to the provisions of
38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318
(West 2002); 38 C.F.R. § 3.22 (before and after January 21,
2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The provisions of the Veterans Claims Assistance Act of 2000
(VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a), and as interpreted by the United States Court of
Appeals for Veterans Claims (hereinafter "the Court") have
been fulfilled by information provided to the appellant by
correspondence dated in January 2004 and March 2007. Those
letters notified the appellant of VA's responsibilities in
obtaining information to assist in completing her claim,
identified her duties in obtaining information and evidence
to substantiate her claim, and requested that she send in any
evidence in her possession that would support her claim.
(See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)),
Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v.
Principi, 18 Vet. App. 112 (2004). See also Mayfield v.
Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other
grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson
(Mayfield II), 20 Vet. App. 537 (2006).
During the pendency of this appeal, the Court in
Dingess/Hartman found that the VCAA notice requirements
applied to all elements of a claim. The March 2007 notice
provided in this case also addressed these matters. The
notice requirements pertinent to the issue on appeal have
been met and all identified and authorized records relevant
to the matter have been requested or obtained. Further
attempts to obtain additional evidence would be futile. The
Board finds the available medical evidence is sufficient for
an adequate determination. There has been substantial
compliance with all pertinent VA law and regulations and to
move forward with the claim would not cause any prejudice to
the appellant.
In its September 2005 order the Court, citing Rodriguez v.
Nicholson, 19 Vet. App. 275 (2005), found the issue on appeal
required re-adjudication because pertinent intervening case
law had held that "hypothetical entitlement" consideration
for DIC benefits under 38 U.S.C.A. § 1318 was allowable for
claims filed prior to January 21, 2000, i.e., the effective
date of the VA regulation prohibiting "hypothetical
entitlement." The case was subsequently remanded for
additional development and the issue was re-adjudicated in a
May 2007 supplemental statement of the case.
On January 7, 2008, however, the United States Court of
Appeals for the Federal Circuit (Federal Circuit) reversed
the Rodriguez decision. Applying the three-part test
outlined in Princess Cruises v. United States, 397 F.3d 1358
(Fed. Cir. 2005), the Federal Circuit found that the
application of the amended section 3.22 did not create an
unlawful retroactive effect because it did not
retrospectively diminish any rights to benefits.
Consequently, it was held that 38 C.F.R. § 3.22, as amended,
does not have a retroactive effect and may be applied to
claims for DIC benefits filed by survivors before the
amendment took effect. See 511 F3d 1147 (Fed. Cir. 2008).
VA law provides that entitlement to DIC may be established in
the same manner as if the veteran's death were service
connected where it is shown that the death was not the result
of willful misconduct, and the veteran (1) was continuously
rated totally disabled for the 10 years immediately preceding
death, (2) was rated totally disabled upon separation from
service, was continuously so rated, and died more than five
but less than ten years after separation from service, or (3)
was a former prisoner of war who died after September 30,
1999, and the disability was continuously rated totally
disabling for a period of not less than one year immediately
preceding death. 38 U.S.C.A. § 1318(West 2002); 38 C.F.R.
§ 3.22(a) (effective Jan. 21, 2000). The phrase "entitled
to receive" is defined as a situation where, at the time of
death, the veteran had service-connected disability(ies)
rated totally disabling by VA, but was not receiving
compensation because, in part, the veteran had applied for
compensation but had not received total disability
compensation due solely to clear and unmistakable error (CUE)
in a VA decision concerning the issue of service connection,
disability evaluation, or effective date. 38 C.F.R.
§ 3.22(b)(3).
In this case, the appellant's claim was received by VA in
November 1998. VA records show that at the time of the
veteran's death service connection was not established for
any disability. An initial application for service
connection compensation benefits was received in June 1998
and a claim for entitlement to service connection for
esophageal cancer was denied in July 1998. There is no
evidence of any earlier claim or rating determination for
service connection. In his August 1998 application for VA
nonservice-connected disability benefits the veteran also
indicated that he had last worked in June 1998. Records show
the veteran died in November 1998. The issue of entitlement
to service connection for the cause of the veteran's death
has been separately adjudicated and is not an issue on
appeal.
Based upon the evidence of record, the Board finds that a
total rating was not in effect for 10 years prior to the
veteran's death and there is no indication that he was
hypothetically entitled to a total rating for the 10 years
prior to his death under applicable VA law. He last served
on active duty in 1970 and there is no evidence he was a
former prisoner of war. Although the Board is sympathetic to
the appellant and her claim, there is no basis in VA law to
allow the benefits sought in this case. Therefore,
entitlement to DIC benefits under the provisions of
38 U.S.C.A. § 1318 must be denied.
When all the evidence is assembled VA is then responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the claimant prevailing in either
event, or whether a preponderance of the evidence is against
the claim in which case the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274
F. 3d 1361 (Fed. Cir. 2001). The preponderance of the
evidence is against the claim.
ORDER
Entitlement to DIC pursuant to the provisions of 38 U.S.C.A.
§ 1318(b) is denied.
____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs